- Right to Conduct Proceedings
- Addressing the Bench
- Attendance at Court
- Non-attendance by: defendant / prosecutor / witness
The Right to Conduct Proceedings
1. The right to conduct proceedings in England and Wales is conferred on you by the HSWA 1974, section 39(1), and by your certificate of appointment, otherwise known as your warrant card. 1 Production of your warrant card should be sufficient to prove this. You should ensure that your warrant is available in court. 2
2. Unless the court otherwise directs, you have the right to have a colleague take notes, quietly proffer advice or prompt. 3 You should not undertake prosecutions on behalf of any other enforcing authority.
3. An inspector conducting a prosecution should not also give evidence. If it appears likely that you will need to give evidence you should ensure that another inspector conducts the case. It is unlikely that this will be necessary in the case of a guilty plea.
Addressing the Bench
4. A District Judge or chairperson of a bench is addressed as 'Sir' or 'Madam'. Magistrates can be individually addressed as 'Your Worship' or collectively 'Your Worships'. . The justices' legal adviser should be referred to as ‘Your learned legal adviser’ when addressing the bench and, when spoken to directly, as Mr or Ms X. Both the bench and the legal adviser should be treated with deference and courtesy.
5. You should stand when addressing the court and when spoken to by the court. You should sit if your opponent rises to speak at any point. You should introduce yourself at the beginning of any hearing and inform the court that you appear to prosecute. You should then introduce any legal representative of the defence.
6. You should speak distinctly and slowly. Technical matters should be explained simply. The clerk and magistrates are likely to take notes and you should ensure that you allow them enough time to do so.
7. A magistrate should not adjudicate on a case if:
- a specific statutory provision provides that the magistrate is disqualified;
- the magistrate has a direct pecuniary interest in the outcome of proceedings;
- there is actual or apparent bias; 4
8. This test of bias applies in all cases, whether concerned with magistrates, or members of other tribunals, with jurors or with arbitrators. 5 In HSE prosecutions it may need particular consideration if the defendant is a large local employer and a magistrate in the case may, for example, be an employee or local councillor.
9. A magistrate who knows there could be an objection to his or her sitting on the case should take the initiative and withdraw, or at least bring the matter to the attention of the parties. 6 Any objection to a magistrate sitting should be made before the case proceeds.
10. The hearing of an information in England and Wales must be in open court 7 and similarly the decision must be given in open court. Magistrates have an inherent power to regulate the procedure in their courts in the interest of justice and expeditious trial.
11. In general neither the court nor the justices' clerk should take an active part in the proceedings, except to clear up ambiguities in the evidence. 8 The court should only exercise its discretion to allow the clerk to examine witnesses where there are reasonable grounds for thinking that this is in the interests of justice, for example, where an unrepresented party is not competent; but not if the party concerned is legally represented, or where an unrepresented party is competent and desires to examine witnesses. After a witness has given evidence in chief and has been cross-examined, the magistrates may ask questions in order to clarify issues.
12. The court may visit the place at which the alleged offence has occurred. 9 Such a viewing is part of the evidence.
Attendance at Court
13. Unless a definite time is fixed for the hearing you should be at court at the commencement of the sitting. If you do not appear at the appointed time the court may dismiss the case. It is always advisable to arrive no later than thirty minutes before the hearing.
14. Check from the court list which court the case will be in and inform the usher that you will be appearing on behalf of the prosecution. You should note your opponent's name. If you are expecting witnesses to attend you should provide the usher with a list of their names.
Non-attendance by: defendant / prosecutor / witness
Non-attendance by the defendant
15. If the defendant is an individual who fails to appear 10 the court may:
- proceed in the defendant's absence; or
- adjourn and issue a warrant for the defendant’s arrest.
16. A warrant for the arrest of a person who has attained the age of 18 shall only be issued if the offence to which the warrant relates is punishable with imprisonment. 11
17. If the defendant is a corporation, the court may proceed in its absence 12 or adjourn.
18. You should decide whether or not to make an application to proceed in the defendant's absence, which may include making mode of trial submissions. You should not make an application to proceed if you are aware of any possible legitimate reason for the non-attendance (eg. illness). The court will examine the history of the case to determine whether it is in the interests of justice to proceed. 13
19. Where the defendant does not appear, and the court decides to proceed or to issue a warrant, you may need to prove service of the summons. It may be advisable to request an adjournment so that you can attempt to serve the summons personally. You can then, if required, give evidence of service of the summons.
20. Where a defendant individual does not attend and the court adjourns the case, it may issue a warrant for the arrest of the defendant providing either it is proved the summons was served on the defendant within a reasonable time of the hearing (on oath or otherwise), or the adjournment now being made is not the first adjournment and the accused was present on the last occasion and was made aware of the next hearing date. 14.
21. The court has the power to proceed to try the information in the absence of the defendant if service of the summons is proved (either on oath or another manner), or if the defendant has previously appeared in answer to a summons and was aware of the trial date. 15 Inspectors should seek advice from LAO if they anticipate such a situation arising.
22. A conviction will be set aside if the defendant declares within 21 days of first becoming aware of the case that s/he was unaware of the proceedings at the time of conviction. 16
Non-attendance by the prosecutor
23. If the prosecutor fails to appear the information may be dismissed, 17 but this should not happen if you are known to be on your way. You should contact the court if you are likely to be late.
Non attendance by a witness at the trial
24. If a voluntary witness fails to attend at the hearing of the summons, you should discuss with the solicitor agent or counsel presenting the case whether to request an adjournment and make an application for a witness summons.
- For proceedings under the Employers' Liability (Compulsory Insurance) Act 1969, the Food and Environment Protection Act 1985, and the Control of Pesticides Regulations 1986, you have the right to conduct proceedings only as the informant; other inspectors may be able to conduct but only with the permission of the court which cannot be assumed. Therefore, if you are the inspector who is to conduct the case, you should lay the information; investigating inspectors should not lay the information as they may have to give evidence. Back to reference of footnote 1
- Campbell v Wallsend Slipway and Engineering Co Ltd  Crim LR 351. Back to the reference of footnote 2
- McKenzie v McKenzie  3 All ER 1034; R v Leicester City Justices, ex parte Barrow  3 All ER 935. Back to reference of footnote 3
- R v Gough  AC 646. In R v Crewe and Nantwich Magistrates' Court, ex parte Roof IT Steel Structures  COD 388, convictions for health and safety offences were quashed where the chairman of the bench was a local councillor and member of a committee which had been in an antagonistic dispute with the defendant company over numerous local matters. Back to the reference of footnote 4
- The same test presumably also applies to judges in the Crown Court. Where the question concerns the bias of a magistrates' clerk, the reviewing court should go on to consider whether the clerk was invited to give the magistrates advice and, if so, whether it should infer that there was a real danger of the clerk's bias having affected the views of the magistrates adversely to the applicant. Back to the reference of footnote 5
- R v Altrincham Justices, ex parte Pennington  2 All ER 78. Back to reference of footnote 6
- MCA 1980, s.121(4). Back to reference of footnote 7
- Simms v Moore  2 WLR 1099,  3 All ER 1. Back to reference of footnote 8
- Karamat v R  1 All ER 415. Back to reference of footnote 9
- A party represented by counsel or a solicitor is not regarded as having failed to appear: MCA 1980, s.122. Back to the reference of footnote 10
- Or the court, having convicted the accused, proposes to impose a disqualification on him. The previous requirement to substantiate the information on oath - i.e. where a police officer or other suitable person such as an HSE inspector confirms on oath that the allegations in the information are true to the best of his knowledge - has been removed. Back to reference of footnote 11
- MCA 1980, sch.3, para.3(2). Back to reference of footnote 12
- R v Bolton Justices, ex parte Merna  Crim LR 848, DC. Back to reference of footnote 13
- MCA 1980, s.13 (2A) and (2B). Back to reference of footnote 14
- MCA 1980, s.11(2). Back to reference of footnote 15
- MCA 1980, s.14. Back to reference of footnote 16
- MCA 1980, s.15(1). This power must be exercised in accordance with the principles of natural justice, the court has held that a case should not have been dismissed where the prosecutor was absent due to a mistake by the court's listing office: R v Dudley Justices, ex parte DPP  156 J.P.N. 618; R v Barnet Magistrates' Court, ex parte DPP  158 J.P 1060. Back to reference of footnote 17